For the spring semester, I am offering advanced commercial law and contracts seminar for UNC students, and have gathered resources to inspire students on paper topic selection as well as to guide what we otherwise will cover. But given the breadth of what might fit under the umbrella of the seminar's title, the students and I would greatly benefit from learning what Credit Slips readers see as the pressing issues in need of more examination in the Uniform Commercial Code, the payments world, and beyond. Some students have particular competencies and interests in intellectual-property and/or transnational issues, so specific suggestions in those realms would be terrific. Comments are welcome below or you can write us at bankruptcyprof <at> gmail <dot> com.

We also are going to do a wiki of commercial law jargon/terminology. So please also toss some terms our way through the same channels as above (or Twitter might be especially useful here: @melissabjacoby).

A common argument made against regulating small dollar credit products like payday loans is that regulation does nothing to address demand for credit, so consumers will simply substitute their consumption from payday loans to other products: overdraft, title loans, refund anticipation loans, pawn shops, etc. The substitution hypothesis is taken as a matter of faith, but there's surprisingly little evidence one way or the other about it (the Slips' own Angie Littwin has an nice contribution to the literature).

The substitution hypothesis is prominently featured in a New York Times piece that is rather dour about the CFPB"s proposed payday rulemaking. Curiously, the article omits any mention of the evidence that the CFPB itself has adduced about the substitution hypothesis. The CFPB examined consumer behavior after banks ceased their "deposit advance programs" (basically bank payday lending) in response to regulatory guidance. There's a lot of data in the report, but the bottom line is that it finds little evidence of substitution from DAPs to overdraft, to payday, or even to bouncing checks. The one thing the CFPB data examine is substitution to pawn shop lending. A recent paper by Neil Bhutta et al. finds evidence of substitution to pawn lending, but not to other types of lending, when payday loans are banned. I'd suggest that we're more likely to see a different substitution: from short-term payday loans (45 days or less) to longer-term installment loans. That's not necessarily a bad thing...if the regulations are well-crafted to ensure that lenders aren't able to effectively recreate short-term payday loans through clever structuring of installment loans. For example, a lender could offer a 56-day loan with four bi-weekly installment payments, but with a "deferral fee" or "late fee" offered for deferring the first three bi-weekly payments. That's the same as four 14-day loans that rollover, and the "late fee" wouldn't be included in the APR. That's perhaps an even better structure for payday lenders than they currently have.) The bigger point here is this: even if we think that there will be substitution, not all substitution is the same, and to the extent that the substitution is to more consumer-friendly forms of credit, that's good.

It's tax time, and here comes another Porter blog post about refund anticipation loans (RALs). I've written several times before about RALs, but was given a reprieve the last few years by changes in policy that made them nearly extinct. (See here for Slipster Nathalie Martin's post on that development in 2011).

But RALs are proving as hard to kill as a zombie--or as difficult as effectively regulating payday loans, as scholars from JJ White to Chris Peterson to Nathalie Martin have noted. RALs are back and "free." Or that is the pitch, as Kevin Wack reports in the American Banker (subscription req'd.) The new RALs work like this: the lending bank charges a fee of $35 or so for each approved loan to the tax preparers. The preparers are forbidden by contract from passing that cost along to borrowers. Hence, the loan is free to consumers. There is no fee and no interest charged. But of course nothing stops the tax preparer from raising fees across the board or for certain kinds of taxpayers who are most likely to pursue an RAL--such as those receiving an earned income tax credit. The consumer groups have pushed back. They note that tax preparation fees are often opaque already and consumers do not receive a final cost until the end making it difficult to be sure that preparers are hewing to their promises to not pass along RAL fees charged by lenders.

It'll be interesting to see if RALs regain a big hold in the marketplace. In the early 2000s, over 10 million taxpayers paid to get their own money back sooner. In the last few years, that number had dropped to about 30,000. While one would think that direct deposit, efile services, and computer tax software would all be pushing against the RAL market making a comeback, I predict RAL numbers are back in the millions by 2020 unless regulators change course again.

Cash checking fees, prepaid card fees, money transfer fees, cashier's check fees -- all together, the unbanked pay up to 10% of their income simply to use their own money. And when lower-income people face an emergency, they must turn to expensive payday loans, title loans, and tax refund loans. As Mehrsa Baradaran (University of Georgia) writes in her new book, How the Other Half Banks: Exclusion, Exploitation, and the Threat to Democracy, "indeed, it is very expensive to be poor."

How did this happen? And how might we begin to solve the problem? In her book, Baradaran details how banks and government are and always have been inextricably tied, with the government helping banks and the banks supposedly helping the public in return. But this "social contract" has eroded. The banking sector has turned away from less profitable markets, leaving people with small sums of money to deposit without a trustworthy place to stash their cash, and people in need of small sums of money to borrow nowhere to turn but fringe lenders. Moreover, these people understandably often are uncomfortable dealing with large banks. And the result is that an astonishing large chunk of the American population is unbanked or underbanked.

If the unbanked and underbanked had a trustworthy place to deposit their cash, some of the fees they pay simply to use their money would go away. This alone might allow families to stay financially afloat. Likewise, if they had the option to borrow small sums of money at reasonable rates, temporary financial emergencies may not set so many families up for a lifetime of financial failure. Which leads Baradaran to a proposal that I’m fond of (indeed, I’ve blogged about Baradaran’s thoughts on it before): postal banking.

Refund appreciation loans, or RALs, are among the priciest loan transactions out there. Customers pay a fee (frequently 40% to 700% if expressed as an APR) to get their tax refund early. The fees can be much higher. I saw one where a consumer was owed a $4,000 tax refund, and paid $1,000 of that to a RAL provider, in order to receive the remaining $3,000 two weeks earlier than the customer otherwise would have. In some parts of the country, for example in Indian Country, RALs seem like the only option. This year I also saw a very well known tax preparers advertise FREE tax return preparation, only to find out they were actually providing high-fee RALs. Not so free…..

But the RAL gravy train may be almost over. The FDIC just ordered one of the last underwriters of the products to stop backing the controversial loans. The FDIC told Kentucky-based Republic Bank & Trust Co. that the loans are unsafe and unsound now that the IRS no longer offers banks its debt indicator, a tool loan providers used to determine whether a taxpayer had outstanding tax liabilities that could be garnished from a tax refund.

In August, the IRS announced that it would no longer tell tax preparers and associated financial institutions when a consumer had a "debt indicator" that the consumer's tax refund would be offset against past due debts such as unpaid child support or delinquent student loans. The IRS move increased the repayment risk for those high-priced refund anticipation loans (RALs). Now comes news that the Office of the Comptroller of the Currency (OCC) has directed HSBC to terminate its contract with H&R Block to provide the financing for RALs.

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